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The Distant Dream of Labor Law Reform

New Orleans Labor Day marks the end of summer for many in North America. It used to mean the start of school. Some still pause for a minute to remember workers and their unions. A reminder in that regard is the spate of articles and op-eds that harp on these themes.

A couple of law professors, one from Austin and the other from Philadelphia, lobbed a piece of meat into the lion’s den trying to make a case for Democrats to put “labor-law reform at the top of their agenda.” That is so not going to happen, that it’s almost enough to make us move on to greener pastures and fresher topics. That is not to say they are wrong in arguing that the National Labor Relations Act is older than dirt, speaks to a bygone era of the last century, and in desperate need of revision. All true! It is also not to say that anything is going to happen in this area. Any so-called labor law reform in this Congress would be horrific for workers and catastrophic for unions, who are now consensus Enemy Number One for the Republican majority there. At best we can only hope that Democrats in Congress have preventing retreat and revision of labor laws on their agenda, because constructive reform is a distant dream.

Regardless, the professors argue for changes that are harder to achieve because they are policy prescriptions that seek to substitute law for workers power. First, they are fans of multi-employer and bargaining across an entire sector. Some of these measures have been recent targets of French so-called labor reforms. The number of countries where this is common is small and falling. Furthermore, multi-employer bargaining is legal now, as evidenced by the Disney councils in Florida and the Hotel bargaining in New York City among other examples. Sadly unions rarely have the strength these days to demand it. The professors also argue for reforms that “could ensure that organized workers can bargain with the companies that actually profit from their work by expanding the legal definition of employment to cover more categories of workers.” This is a case for moving to the deepest pockets rather than being stuck with the subcontractors as well as piercing the fictions around company-claims of independent subcontractors. This was at the heart of the Justice for Janitors campaigns, where successful in some cities in targeting building owners to win recognition for janitors, grounds workers and security workers, but once again a strategy that largely worked where unions had strength or could leverage companies in multiple markets where there was strength, and not much of anywhere else.

A long and painful story to read recently compared the trajectory of a Kodak janitor who was directly employed by the company who broke through the ceiling and an Apple janitor employed by a subcontractor making over $16 per hour with no chance of ever going so high. Some might recall how fiercely Apple fought Mike Garcia and Jon Barton, the key organizers of what turned out to be a successful SEIU campaign to force the company to hire union contractors against everything the company tried, including their efforts to fabricate a subcontractor with a company union to resist the effort. Subcontracting in the tech and a gazillion other industries is now part of core business models. Reading the story of secondary market auto parts company in Michigan where the beleaguered woman boss bemoaned any ability to pay $15 per hour while she’s paying $9 and $10 in her factory there, painfully underscores the corporate and investor squeeze that makes workers and certainly their unions last on the list. Perhaps it is needless to say that contrary to the professors claim, Fast Food Forward is hardly the precursor of the future with its demands in that industry for $15 and a union, but more likely a flag waving in an increasingly rearguard retreat.

Workers and unions desperately need a hand, but we have a better shot at developing a new organizing model than we have in expecting labor law reform.